Massachusetts Custody Decisions Are Based On The Child & Rsq

It is likely that one of the most stressful parts of divorce for  parents is not knowing how child custody and visitation or parenting  time will be decided. If you do not understand the law and procedures  that apply, it can be frightening to think about how your relationship  with your children could change, whether you will be able to make  important decisions for them, where they will live and how much time you  spend together.

Best-interests standard

In Massachusetts, the best interests of the child is the guiding  principal for judges making custody decisions. State law provides that  the child’s “happiness and welfare” are paramount and the parents’  rights are equal unless a parent has been found to be currently unfit.

Often divorcing parents can negotiate an agreement on matters of  child custody and visitation/parenting time, usually through their  respective attorneys. Their agreement may then be submitted to the court  for incorporation into the final divorce judgment. However, if the  judge finds the settlement agreement is not in the child’s best  interest, it can be rejected.

In addition to traditional negotiation, mediation and collaborative  law are alternative dispute resolution methods that may be used to reach  an agreement. However, if an agreement cannot be reached outside of  court, then custody and visitation/parenting time will be decided by the  judge in the divorce or custody proceeding.

Types of custody

Two kinds of custody must be decided: physical and legal. Physical  custody determines where a child has his or her primary residence, often  with one parent who is the sole physical custodian with the other  exercising parenting time with the child. Alternatively, joint or shared  physical custody means that the child splits residential time between  the two homes. The shared time may or may not be equal.

Legal custody gives one parent solely, or both parents jointly, the  right and responsibility to make major life decisions for the child,  including those concerning education, health care and religion. Shared  legal custody and decision-making powers are often awarded and  preferable in most cases.

What to expect in court

If custody issues are before the court and a parent or parents want  joint custody, they must submit proposed shared custody implementation  plans, either alone or jointly. The judge may adopt a submitted plan,  modify a submitted plan, or create a new one.

Sometimes, the judge may appoint a guardian ad litem, a person  assigned to protect the interests of the child throughout the divorce  process. The judge may ask for that person’s recommendations about  custody and the judge may also order a formal investigation of the  circumstances impacting the custody decision.

Of course, both parties can submit evidence to the court relevant to  custody issues and a hearing will be held at which witnesses may testify  and be cross-examined.

Although judges are required to look at family history, including  possible abuse, and whether the child’s past or current living  arrangements are in his or her best interest, state statutes vary in the  specific factors a judge must consider when deciding custody issues.  This gives the judge wide discretion to consider those factors he or she  believes are relevant to determining what is in the child’s best  interest.

This is a basic introduction to a complex area of state law. Anyone  facing custody matters should seek advice from an experienced family  lawyer.

The attorneys at the office of Linda Sternberg, Esquire,  are family lawyers in Watertown. They represent parents in the  Watertown metropolitan area and the surrounding counties in divorce and  paternity matters, including child custody and visitation/parenting  time. They use negotiation, mediation, collaboration and litigation to  help their clients meet their goals.